March 2010 Archives

In In re Gates, No. 09-4125, the Fourth Circuit faced a challenge to district court's contempt conviction of a criminal defense attorney for failing to appear in court on time for a plea hearing.

As stated in the decision: "It has long been the rule in the Fourth Circuit that the mere failure to appear in court at a scheduled proceeding is not an act committed in the actual presence of the court and is therefore not punishable summarily under Rule 42(b)."

Here, the attorney's contempt, if committed at all, was outside of the district court's presence. Thus, the district court erred in imposing the punishment in a summary proceeding without affording the attorney notice or an opportunity to respond to the charges.

In Robinson v. Wix Filtration Corp. LLC, No. 09-1167, the court faced a challenge to the district court's denial of plaintiff's post-judgment motions seeking relief from entry of summary judgment in his wrongful termination suit against his former employer and others.

As stated in the decision: "Appellant's counsel knew full well that the deadline for dispositive motions was pending...Plaintiff's counsel knew that he and other members of his firm were experiencing problems receiving emails and that, pursuant to the local rules of practice and procedure, any notice of docket activity would arrive through e-mail."

Thus, in rejecting plaintiff's claim that the district court erred in failing to consider his Rule 60(b) motion and that it abused its discretion in denying his Rule 59(e) motion, the court held that because the plaintiff's counsel was willfully blind to whether the opposing side had filed a dispositive motion, the district court did not abuse its discretion in denying the Rule 59(e) motion, nor did it err in denying the 60(b) motion as plaintiff's counsel's inattentiveness is not an excusable neglect under the Rule.

In US v. Purdue Pharma L.P., No. 09-1202, the Fourth Circuit decided a plaintiff's qui tam action involving claims tha this former employer defrauded the government by marketing its pain-relief drug, OxyContin as a cheaper alternative to another drug made by the employer.

As stated in the decision: "When the government is unaware of potential FCA claims the public interest favoring the use of qui tam suits to supplement federal enforcement weighs against enforcing prefiling releases. But when the government is aware of the claims, prior to suit having been filed, public policies supporting the private settlement of suits heavily favor enforcement of a prefiling release."

Thus, the court held that the district court erred in its decision not to enforce the Release, signed by the plaintiff, as a bar to plaintiff's claims because the allegations of fraud were sufficiently disclosed to the government prior to the plaintiff's filing of the qui tam suit. The court nonetheless affirmed the dismissal of plaintiff's suit with prejudice in concluding that the result was correct.

In Golden & Zimmerman, LLC v. Domenech, No. 09-1534, the Fourth Circuit addressed plaintiffs' claim that an answer to a "frequently asked question" in the "Federal Firearms Regulations Reference Guide 2005," published by the ATF, was inconsistent with the Gun Control Act.

The plaintiffs' main contention was that the particular answer at issue in the reference guide prohibited the plaintiff, a North Carolina licensee, from selling guns at a Virginia gun show to a Virginia licensee for transfer to Virginia residents. The court concluded that the reference guide is simply informational and that its publication is neither agency action nor final agency action, that is necessary for review under the APA. Therefore, it affirmed the district court's dismissal of the action for lack of subject matter jurisdiction.

In US v. Llamas, No. 09-4045, the court faced a challenge to a conviction for multiple offenses arising from defendant's role in fraudulent sweepstakes scheme, a 132 month sentence and restitution order exceeding $4.2 million. In affirming the conviction and the sentence, the court rejected defendant's arguments including, that the district court erred in applying an adjustment for preying on unusually vulnerable victims and in finding that he played a central role at the Costa Rica call center in the scheme. However, the court vacated and remanded the restitution order as the district court abused its discretion in not limiting the restitution amount to losses attributable to the call center.

In US v. Caro, No. 07-5, the court faced a challenge to a conviction for first-degree murder of and a sentence of death for killing of an inmate. The defendant made several challenges to his conviction, including district court's voir dire, denial of his Brady motions, refusal to give defendant's proposed mercy instruction, and various admissibility decisions. However, the court rejected all of defendant's claims and affirmed his conviction and sentence and concluded that, although the court recognized some possible errors, none of these were widespread or prejudicial enough to have fatally infected the trial or sentencing.

Lastly, in Mirisawo v. Holder, No. 08-1704, the court dealt with a petition for review BIA's decision affirming the IJ's removal order to remove petitioner from United States to Zimbabwe. The petitioner claimed that the BIA erred in finding that she failed to show that she suffered economic deprivation to amount to past persecution. But the court held that the BIA's judgment is supported by substantial evidence that the destruction of her house in Zimbabwe by the government was not an economic persecution, as she has never lived in that house, nor was it likely she ever will live in the partially remaining house. The court also affirmed the BIA's conclusion that petitioner's fear of future persecution was not objectively reasonable.

In In Re: Kirkland, No. 09-1379, the court addressed the issue of whether a bankruptcy court had jurisdiction to determine post-petition interest and collection costs to which the creditor was entitled as the result of a default on a student loan that occurred after Chapter 13 estate was closed and the debtor discharged.

As stated in the decision: "ECMC's claim to post-petition interest and collection costs is not a matter "under Title 11" nor is it a civil proceeding "arising in" or "related to" Kirkland's bankruptcy petition." Also stated in the decision: "A claim to post-petition interest and collection costs is also not a matter "arising in" or "related to" a bankruptcy proceeding."

Thus, in reversing the district court's decision, the court held that the bankruptcy court lacked subject matter jurisdiction in the matter.

As stated in the decision: "The record reflects that travelers had trouble buying newspapers from the shops. There were instances of unavailability during the early morning, and the shops would sell out of The Herald-Sun. Furthermore, the Authority concedes that newspapers were unavailable once the shops closed each day around 9:00 p.m....The Publishers' ability to reach these people inside the terminals was thus nonexistent."

Thus, in affirming the district court's grant of summary judgment in favor of the plaintiffs, the court held that the government interests asserted to justify the total ban do not counterbalance its significant restriction on protected expression.

The Fourth Circuit decided a immigration matter and a criminal case involving a defendant's challenge to his sentence under the armed career criminal enhancement.

In Cervantes v. Holder, No. 09-1519, the court faced a challenge to the BIA's decision affirming the IJ's denial of an application for temporary protected status by two brothers from Honduras, whose parents had already been residing in the U.S.

As stated in the decision: "On January 5, 1999 - while the petitioners were yet in Honduras - the Attorney General designated that country for the TPS program due to the devastation caused by Hurricane Mitch. The TPS is authorized by section 244 of the INA, which allows eligible nationals of a foreign state to temporarily remain in the United States during the pendency of that state's designation for the TPS program."

In affirming the holding, the court concluded that the BIA did not err in determining that the petitioners did not satisfy the two requirements for TPS eligibility as they did not demonstrate continuous physical presence nor that they continuously resided in the U.S. since December 30, 1998.

In US v. McNeil, No. 09-4083, the court faced a challenge to the district court's imposition of a sentence upon a defendant convicted of firearm possession and possession with intent to distribute crack cocaine as an armed career criminal.

In affirming the district court's sentence under the ACCA, the court concluded that defendant's prior felony convictions qualified as predicate offenses for purposes of the ACCA, and the district court did not abuse its discretion in the upward departure as the sentence was reasonable.

The Fourth Circuit decided two immigration cases and a 42 U.S.C. section 1983 case involving whether defendants are liable for a child who has been involuntarily removed from her home by state social workers and knowingly placed in a dangerous foster care environment.

In Doe v. S. Carolina Dep't of Soc. Servs., No. 08-2161, the court faced a challenge to district court's grant of defendants' summary judgment motion in a 42 U.S.C. section 1983 case by a minor child and her adoptive parents. Under DeShaney, when a state involuntarily removes a child from her home, thereby taking her into its custody and care, the state has taken an affirmative act to restrain the child's liberty that triggers due process protections and some responsibility for the child's safety and well being. Thus, the state officials in this case had a duty to restrain from placing the plaintiff in a known, dangerous environment in deliberate indifference to her right to personal safety and security. However, under the second prong of the qualified immunity inquiry, district court's grant of summary judgment in favor of the defendant is affirmed as, at the time of the placement, such a right was not clearly established in this circuit.

With respect to the parents' section 1983 claim that defendant violated their substantive due process rights by placing the child in their home without fully disclosing her history, judgment of the district court is affirmed as adoptive parents have no such right to the disclosure of a child's history of sexual abuse. Finally, with respect to plaintiffs' state law claim for gross negligence against the officials who handled the adoption, district court's grant of summary judgment in favor of the defendants is vacated for consideration of the applicability of section 15-78-60(25).

In US v. Mendoza-Mendoza, No. 08-5007, the court faced a challenge to a district court's imposition of a substantial enhancement to the defendant's sentence based on his earlier indecent liberties conviction. In sentencing, the court stated that although it did not agree with the Guidelines range, it was obligated to iimpose a Guidelines sentence unless a reason for departure or a variance existed.

In reversing the sentence, the court explained that the district court's prefacing a sentencing explanation with such an obligatory terminology amounted to an impermissible presumption that the Guidelines sentence is appropriate.

In Kporlor v. Holder, No. 08-2363, the court addressed the issue of whether it had jurisdiction to hear a petition fpr review BIA's denial of petitioner's applications for withholding of removal and other related relief.

In affirming the decision, the court explained that under 8 U.S.C. section 1252(a)(2)(C), it lacked jurisidction to review BIA's denials of withholding of removals in cases involving aliens convicted of committing crimes of moral turpitude. Moreover, the court lacks jurisdiction to review the CAT claims because petitioner did not exhaust his administrative remedies by appealing the IJ's denial of the claim.

In Nickey Gregory Co. LLC, v. AgriCap, LLC, No. 09-1130, the Fourth Circuit addressed the issue of whether the plaintiffs, sellers of perishable agricultural commodities, could seek disgorgement from a defendant-financier money owed them for the sale of produce to a bankrupt produce distributor under the Perishable Agricultural Commodities Act (PACA).

As stated in the decision: "The distinction between a sale and a loan controls the issue of whether AgriCap purchased the assets free of the PACA trust or merely held the assets to collateralize its loans to Robison Farms, in which case the receivables would have remained subject to the PACA trust and would have been required, by the terms of the regulations, to be made "freely available" to pay obligations to commodities sellers."

In concluding that the transaction in this case was a loan, the court affirmed the district court's holding that AgriCap must disgorge from the assets of the PACA trust amounts sufficient to pay unpaid PACA creditors. In so holding, the court rejected defendant's BFP defense and vacated the district court's award of damages to award the commodities sellers the full amount of the unpaid balance.

In US v. Goodwyn, No. 09-7316, the court faced a challenge to the district court's grant of defendant's motion for a reduction in his sentence a second time within eight months. In reversing the decision, the court held that although the district court acted within its authority to grant the first motion under 18 U.S.C. section 3582(c)(2) and U.S.S.G. section 1B1.10, the district court lacked the authority to grant the motion for reconsideration under these, or any other, provisions a second time.

In US v. Jarmon, No. 08-4624, the court faced a challenge to a sentence on a felony firearm conviction based on a prior 2002 conviction for larceny from the person a crime of violence. In affirming the conviction, the court held that under the "otherwise" clause of the guidelines, larceny from the person is the type of purposeful, violent, and aggressive conduct that would support an inference that this offender would be more dangerous with a gun.

In US v. Baptiste, No. 07-4493, the court dealt with defendant's various challenge to his conviction for drug related crimes. In affirming the conviction and his sentence, the court rejected defendant's claim that the district court erred in allowing a detective to testify as an expert witness, that the prosecution made inappropriate remarks in its closing argument, and that the district court erred in failing to conduct voir dire following allegations of jury intimidation.

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U.S. Fourth Circuit features news and information from the U.S. Fourth Circuit Court of Appeals, which hears appeals from U.S. District Courts in North Carolina, South Carolina, Virginia, West Virginia, and Maryland. This blog also features news that would be of interest to legal professionals practicing in the 4th Circuit. Have a comment or tip? Write to us.